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Copyright 2014 Tzu-Te Wen Copyright 2014 Tzu-Te Wen REFORMING THE MECHANISM FOR SCREENING PROSECUTORIAL CHARGING DECISION IN TAIWAN BY TZU-TE WEN DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in Law in the Graduate College of the University of Illinois at Urbana-Champaign, 2014 Urbana, Illinois Doctoral Committee: Professor Andrew D. Leipold, Chair Professor Jacqueline E. Ross, Co-Chair Professor Eric A. Johnson Associate Professor Anna-Maria Marshall ABSTRACT For years, prosecutors in Taiwan have been faced with criticism from scholars, lawyers, and judges over the abuse or errors of prosecutorial charging decision where there is insufficient evidence to indict a case or there is an ill or unjustified motivation or consideration behind the charge, whether those charges are intentionally or erroneously made. These criticisms strongly suggest that the current screening mechanism does not function effectively as a shield to protect the accused and to scrutinize prosecutorial charging decisions. As a result, not only does unwarranted charging inflict a discriminative effect upon defendants, but it also burdens our criminal justice system with inflated caseloads and fosters mistrust of the system by the citizens. The prosecutorial system in Taiwan mainly adopts mandatory prosecution, which means that prosecutors are obligated to charge once the requirement of mandatory prosecution is satisfied, i.e., sufficient evidence to entertain a suspicion that the defendant committed the crime is reached, in felony cases. But in practice, prosecutors retain a large measure of decisions that permit abusive or erroneous charges to be filed. Therefore, the effective screening of prosecutorial charging occupies a critical stage in criminal justice to prevent potential wrongful prosecution and conviction. However, one may infer that the system is seldom being employed to screen charging decisions, given that both the overall offense and the corruption offense dismissal rates are much lower than 1%. Although these statistics are not determinative, they still strongly imply the screening system in Taiwan is ineffective. As such, the current screening mechanism does not ii function effectively as a shield to protect the accused and scrutinize unwarranted charging decisions. The current body of research does point out the problems of prosecutorial charging decision, yet it does not address any prospective solutions. Moreover, it does not propose any reforms to the current screening mechanism or has any evaluation of the current screening mechanism. It is, therefore, the goal of this dissertation to analyze current deficiencies of the mechanism and to institute potential alternatives for screening mechanisms in order to eradicate unfounded or erroneous prosecution. In achieving this goal, the methodology of “comparative analysis” is the major underpinning. Legal theories from various bodies of research are referenced in order to identify the characteristics of the major systems of the United States and France, as well as address the advantages and disadvantages of those screening mechanisms, such as the grand jury and preliminary hearing mechanisms in the United States, and investigating judges (juge d’instruction) in France. These features are then compared and contrasted to Taiwan’s current system to discover the defects in the design of its screening mechanism, including the screening procedure, screener neutrality, evidentiary rule, the right to counsel, the threshold to screening, and discovery. Furthermore, screening mechanisms from different countries originated from different historical backgrounds as well as different legal cultures, which are explored to determine if the resulting procedures provide a potential vehicle for Taiwan to reform its current screening system. iii Eventually, the proposed reform of the screening mechanism would adopt adversarial-style procedures that emphasize an evenhanded process for both parties, more participation and input from the defense, and independent screening procedures that allow the screening judge to hold a hearing. Both structural reform to the screening procedure and adding an adversarial component to improve the screening would lead to a comprehensive and improved solution for Taiwan. Through the external improvements, the system would scrutinize prior to charging, increasing the chances of weeding out unfounded prosecutions. iv ACKNOWLEDGEMENT Life is a series of dazzling journeys that will never cease to thrill and amaze me. I had dreamed of becoming a doctor in the field of Law since the onset of my practicing as a public prosecutor, though I never seriously entertained the possibility of that dream becoming a reality. This particular story began when, whether by design or fate, my innate curiosity met with my passion for learning in 2009 when I decided to hope against all odds and apply to the J.S.D. program at the University of Illinois at Urbana- Champaign. Little did I know at that time what a wonderful journey and abundant feast of knowledge and learning it would be for me. Even though I was now, contrary to all expectations I had for myself, on the path to achieving my dream, I almost decided to give up due to my deteriorating health condition. It is said that “no man is an island” and this was especially true on this journey. I could never have completed this dissertation and achieved my dream of becoming a doctor without the love, encouragement, support and help of so many. I would like to take this opportunity to express my sincere gratitude to those who played such a big part in my achieving this dream. Professor Andrew Leipold, Chair of my committee, was my role model and mentor in every aspect of my learning here and will continue to be as I embark on many more journeys in the future. Many eloquent discussions and intellectual exchanges with him helped shape my dissertation brick by brick. His meticulous attitudes in scholarship and well-organized arguments in legal academia guided my dissertation towards an otherwise unattainable quality of work that received praise from those whose opinions I v value so much. Professor Leipold also gave me advice on lessening my health problem by providing much-needed information on available medical, and other resources. As a student so far from home feeling somewhat helpless and desperate due to my medical condition, his caring advice made me feel like I had family here to rely on. I will never forget his guiding hand and the care and attention he showed me in trying to alleviate my pressures, both academic and personal, and for all of this I am eternally grateful. Professor Jacqueline Ross, Co-Chair of my committee, provided me a clear path and a potential alternative of considering a Continental model in France as a vehicle for an abundant conversation on the systems of the United States and France. Professors Anna-Maria Marshall and Eric Johnson provided many invaluable comments in my defense for methodological conversations and emphasized the analysis on law in action. I cannot thank you all enough for your time, attention and expertise, without which this dissertation would surely have suffered. Professor Thomas Ulen, an academic tycoon, although not seated on my committee was indeed a committee member deep in my heart. He taught me various methodologies, behavioral social science and a rational way of analyzing the market and the world. He graciously shared with me his thoughts and led me towards getting a hold on any legal problem with more than just rule-oriented discipline; rather looking at things from the perspective of human decision-making as well. He certainly deserves much respect and is another mentor for my future career path. vi Dean Charlotte Ku and Christine Renshaw, from the International Office, thank you both for being so confident over my performance and for your constant encouragements. Several J.S.D. peers, Romin, Feng Ye, and Yu-An Chen, thank you for your support as well. I also wish to extend my gratitude towards my Taiwanese professor Ching-Fang Wu, from National Taipei University Law School, for her constant encouragements and for urging me to finish my degree and pursue academia as a career. Special thanks is dedicated to current Taiwanese Deputy Minister of Justice, Chen-Huan Wu, for his gracious recommendation letter for the J.S.D. program, and his urgings for me to return to my career as a public official to devote my knowledge to our country. I would also like to extend my gratitude to my former Chief Prosecutor, and also current Taiwanese Deputy Minister of Justice, Pi-Yu Tsai, and my former head prosecutor, Chung-Feng Chen, for their many encouragements to return to public service. I also want to express my thanks to the Director of the New Taipei Branch of the Administrative Enforcement Agency, Ying-Chin Chen, for his kind suggestions for my future. I certainly cannot forget to thank my fellow judges and prosecutors, Feng-Nian Chen (Lawrence), Chung-Hwa Chang (Jun), and Ti-yi Liao (Frances) from the New Taipei City District Court and Prosecutorial Office for their companionship during my studies and for asking me to lecture legal English classes for them, which showed me that teaching is itself a learning process; associate professor Robert Tsai from National Tsing Hua University, for his encouragements, and Henry Lin, former Department Director of Chinese Culture University Law School, for their confidence and limitless support throughout this journey. I am still struggling with choosing which career path might vii provide me with the best opportunity to exploit the knowledge I have gained from my time at The University of Illinois at Urbana-Champaign, as well as provide for my personal welfare and happiness. Finally, I want to thank my family; Mom, Dad, Darran, Tzu-Ming and Wei-Xuan, for your constant love and support and for always being there as a source of faith and a rock upon which I relied to steady my course.
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